Thursday, November 01, 2007

Meditations on the First Amendment

As amusing and gratifying as that is, there are a surprising number of folks protesting the verdict on First Amendment grounds.

*sigh*

One more time from the top, ladies and gentlemen:

"The First Amendment

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."The Federal Governments only role in this trial was as arbitrator between two private parties -- as it should be.

Was the plaintiff in this case -- the grieving father -- was he actually Congress? Did the Federal Government actually file suit? Provide the finances to sue? Have anything to do with the lawsuit other than to arbitrate?

No?

Then how does the First Amendment -- like the other original ten amendments a check to government power-grabbing -- how does the First Amendment restriction against the government abridging the freedom of speech apply in a private dispute between two private citizens?

When you say that the decision in this case violates Fred Phelp's First Amendment rights, you are saying:

"That private citizen can't sue that other private citizen because Congress shall make no law abridging the freedom of speech"*blink, blink*

Read that again.

Whole bunch of people (myself among them) consider that the expansion of certain Constitutional issues to be one of the worst evils of the modern American government. The Interstate Commerce Clause, for example, was never meant to be used as a justification for what it covers now.

On that same note, anyone who complains about the slow creep of the Federal Government into areas that don't concern it -- well, folks, that includes the slow creep of the First Amendment out of government regulation and into private citizen regulation.

This grieving father was hurt by Phelps and -- as provided for in our system of Government -- turned to civil litigation to provide relief.

A jury of his peers listened to his case, debated it and found justification for damages and relief. That is how our system works.

To say:

"That private citizen should not be allowed to sue that other private citizen because Congress shall make no law abridging the freedom of speech"

-- and make no mistake, that is EXACTLY what those arguing against this verdict on First Amendment grounds are saying -- not only defies logic, but it goes against the very bedrock our legal system is founded on.

"Your Rights End Where Mine Begin" is a uniquely American sentiment, and Phelps just got tutored on it -- and his First Amendment rights were neither damaged, nor trampled on during the process.

This is good, and I hope every other person who suffered because those pestilential parasites got stupid at their grief sues the whole stinking Phelps clan into the poorhouse.

40 comments:

However, I think perhaps I can shed a bit of light on the "First Amendment objection" to this sort of lawsuit. The First Amendment does indeed say "Congress shall make no law abridging freedom of speech." Congress has, obviously, made a law that permits one person to sue another for things the second person said. The question is, does the threat of being sued for exercising one's free-speech rights in certain ways constitute "abridgement?"

You think not. I think not. I daresay most of the people who read this blog also think not. Other people may disagree.

Picture two hypothetical bloggers. One makes a habit of describing antiwar activists in especially disgusting terms. The other is generally civil and courteous, but makes no secret of the fact that he views antiwar activists with unmitigated contempt. Now suppose that a group of antiwar activists sue both these bloggers for inflicting "emotional distress." Then suppose they begin a systematic campaign of filing such lawsuits against any blogger who supports the war effort. In short order most of those bloggers will be silenced. Then Congress's seemingly-innocuous action of permitting lawsuits like this have resulted in the systematic silencing of political speech. So, does the law abridge free speech, or not?

Sorry LD, but you're wrong here. When you file a lawsuit, you are asking the government to exercise its power, under some law passed by Congress or a state legislature (depending on whether it's in federal or state courts). That enabling law is subject to the 1st Amendment. If Congress can't shut these bastards up, private citizens can't do it through the courts.

OTOH, it is likely that the Phelpsies violated laws against trespassing, harassment, littering, loitering, etc., somewhere in their picketing. Whether or not the government files criminal charges, you can always sue someone who injured you in the course of criminal action - and the jury gets to decide how much damages to award.

Finally, while I wouldn't advocate anyone breaking the law, do you recall the "no duty to protect" court decisions? If the Phelpsies call 911 because an angry mob is beating the crap out of them, and the dispatcher happens to misplace the message or the cop car gets lost on the way, the courts have ruled repeatedly that cops have no duty to protect particular citizens or stop particular crimes. Prosecutors can't be questioned about their decision to charge or not charge people for assault and battery. If it does wind up in front of a jury (and Phelps is likely to be stupid enough to file a civil suit in such a case), jurors cannot be forced to follow the written law.

Of course, there is a hazard of winding up in front of the wrong jury, but aside from Phelp's church membership list where in this country could you draw 12 citizens who preferred gay-bashers over dead American soldiers?

"When you file a lawsuit, you are asking the government to exercise its power, under some law passed by Congress or a state legislature (depending on whether it's in federal or state courts). That enabling law is subject to the 1st Amendment."

In civil court you are not "asking the government to exercise its power, under some law passed by Congress or a state legislature".What you ARE doing is trying to convince the majority of 12 folks that some citizen damaged you, regardless of laws or legalities.All of the defendants actions could have been technically legal but still caused damage to someone else for which they can be held accountable.

I think the key here is not the 1st amendment so much as it is one of intent. It was not the content of the message on trial (as I understand it), but rather the method of delivery.

Had Phelps held his protest in a public square on any given Sunday, he would be well within his rights to spew whatever bile he wanted and we could all ignore him as we pleased.

However, by obviously targeting his demonstrations against a private citizen (and no one is fooled that he is not targeting private citizens), he crosses a boundary between free speech and right to assemble and enters the area of harassment and invasion of privacy. His actions bear a resemblance to anti-abortionists protesting in front of a clinic and barring access to the clinic. The first amendment gives you the right to speak, it does not give you the right to be heard. By protesting the funeral of a person, you are forcing the attendees of the funeral to listen to you (an argument could be made that a counter protest could be used to drown them out, but again, as an individual, I have no duty to listen to your protest and I have every right to leave the vicinity of your protest). So either the attendees must stop their service early, or have it not at all, or they must be a captive audience to the protest.

In the same vein, a person accused of a crime could sue protesters assembled outside of his home, even if they were on a public street, for harassment and defamation of character, but not against protesters in front of the courthouse where his trial is taking place.

Mr. Snyder would have no case (IANAL, but IMHO) if, after the funeral service, he happened to see the protest while going to the store and became upset by it. Sure it would be offensive, and he might take it personally, but Phelps would be right in saying he had no obvious intent to target Mr. Snyder and he was merely exercising his right to free speech and to peaceably assemble.

I do think this could set a dangerous precedent, but it would not be the first time private citizens have attempted to use the courts to silence others, and I doubt we will see a rash of successful lawsuits like this.

As I see it, the First Amendment promises that you are free to speak, but does not promise a podium or an audience. You have no right to speak on private property (other than your own), or on public property on which others have (temporarily or permenantly) the reasonable expectation of privacy.

I would say that the Phelps violated the reasonable and customary expectation of the grieving family that they would have privacy in which to morn and bury their dead.

I would also say that Phelps and co. are damned lucky that the father is a civilized man. Sooner or later, if they keep this kind of thing up, somebody is simply going to shoot them.

LawDog, I'm afraid you're more than 40 years behind the times. The 1A has been applied to private actions for defamation and libel ever since the supreme court decided New York Times Co. v. Sullivan in 1964. It was applied to infliction of emotional distress (the tort at issue in this case) in Hustler v. Falwell. Both these decisions are right on the money, as far as I'm concerned. Could we really have freedom of speech if the government could use some private individual as a sockpuppet to bludgeon unpopular opinion with?

Not to beat a dead horse, but the 1st Amendment is not without restrictions. We place restrictions on religion, we place restrictions on speech (libel & slander), we place restrictions on assembly (must be public land, permits must be gotten first).

To go with religion, let's say I belong to a religion that believes it is God's Law that once a girl starts menses, she should become pregnant ASAP. Now you all know that won't fly, but I could argue it is my religious belief and by not letting me practice it within my faith, you are denying me my first amendment rights.

So yes, there are restrictions on our first amendment rights. With regard to free speech and the press, you must either couch your message in terms of personal opinion or as an item of fact backed with evidence, or you can suffer the consequences. Now, I could write on my blog that I hold the opinion that Lawdog is a closeted Liberal Democrat with no sense of decency and Socialist leanings, and he would have no leagal recourse, but if I stated it such that I know for a fact he is a closeted Liberal Democrat with no sense of decency and Socialist leanings (and he is gonna vote for Hillary), well, he'd have the beginings of a lawsuit (although I figure a lawsuit would be the least of my worries, more likely pistols at dawn).

Would he win a lawsuit, maybe, depends a lot on the circumstances and being able to show that my statements caused demonstrable harm to Lawdog through something like the loss of readership and/or revenue.

As I have said on my show many times, everyone's rights ends just before they infringe upon mine. Rev. Phelps Infringed upon the Family's expectation of a private ceremony to honor thier son, if Rev. Phelps is not officiating at the service he has no right to dispurpt it. His rights end just out of earshot of the the mourners. If he had showed up with his signs and stayed a reasonable distance away without the screaming, I doubt a jury would have found he violated the family's right's.

NOBODY is telling Fred Phelps and his ilk(family/congregation) that they DO NOT have the right to free speech and to say what they want. They most absolutely do. However, this private citizen who is the relative of an American Hero IS TELLING Fred Phelps that he can say what he wants, but he will also be RESPONSIBLE FOR IT!! That is vastly different than making a law saying or forcing someone to do or not do something. That has not been done. It is about time people understand that you may have the RIGHT to do/say something, but you can also be held RESPONSIBLE/ACCOUNTABLE for it.

You want to burn an American flag in public(I don't agree with this)? GREAT!! But, I also reserve the RIGHT to knock your block off for doing so.

You want to claim to be a "christian"(therey putting decent Christians in a very bad light) and say some extremely vile things at a soldier's funeral and celebrate their death to stroke your ego? GREAT!! I reserve the RIGHT to hold you accountable and sue you into oblivion, and shoot you if I should so desire.

Oh yeah, my brother's career military, and he has fought for YOUR RIGHT to be a jackass, and MY RIGHT to hold you accountable.

kibi, you are describing assault. If I come up to a hippy holding a sign saying something offensive like "The Second Amendment is a collective right", and I resort to violence, I am assaulting the person. The hippy could then legally plug me.

The way to counter speech is with stronger speech. The way to counter violence is with stronger violence.

This is the same thing as saying I can yell "FIRE" in a crowded theater causing a stampede of people that ends up hurting and possibly killing someone (or more then one) and then saying "I have the right to yell it."

You don't.

The law in this case has nothing to do with whether Fred Phelps and his idiots can say what they want...its about WHERE they can say it. HUGE difference.

They can NOT scream and shout and disrupt a PRIVATE funeral. This father or someone else PAID for that funeral..not the Phelp nuts.

They do not have the right to even BE there to disrupt it technically as they don't even own the land. Simply put, I'd like to see them all get arrested for trespassing too.

They can parade up and down the main street with the proper permits.

They can paint thier church house with all the slogans they want.

They can pay to have thier tripe written in the sky with smoke.

They can NOT come to my house and force me to listen to it.

They can NOT come to a soldiers funeral, paid for by someone else, on someone elses property and force people to listen to it either.

THAT is what this lawsuit was about. Not their ability to spout thier tripe.

The Westboro Baptist Cult (in my opinion - thank you, MadRocket) is local to me. They picket our church every week when they aren't out nationally somewhere.

Due to these people, I had to explain sodomy to a 7 year old (this was back in the day when they could block sidewalks and shout right in your face on the way into church - now they have to be across the street by law).

Fast forward 14 years later - to last Christmas Eve. That boy is in his USMC dress blues, escorting Grandma, me and K (future dear daughter in law). Same sidewalk, same foul language. He kept his bearing. And so did I - barely. My mom was in tears, though.

Karla Please tell your son he is in my prayers and that I thank him for his service, and he honors us even the idiot with the signs through his service, though the idiot doesn't realize it. Rev. Phelps has his agenda, and it doesn't bear any reality to the bible I read. Please keep maintaining the moral high ground with these idiots, hopefully the Lord will finally be able to enter thier addled minds through thier souls and they will realize the error and hatefullness of thier ways.

I must admit I am of two minds regarding the verdict. On the one hand, I applaud the fact that someone has finally stomped on those cockroaches; on the other hand, I feel the verdict was wrongly arrived at.

The courts have long held that the people have the right to say anything they like ... with limitations. Some of those include things like yelling "movie!" in a crowded firehouse. Other intentionally offensive expressions are considered protected.

You touched on this yourself in the post about the kid who flipped you off. It was deliberately, intentionally offensive ... but it was protected speech.

The courts have also held that the constitutional protections in the First Amendment extend beyond government/people interactions to people/people interactions as well.

Their reasoning is that the government runs the courts, and to allow people to suppress another's speech is to let people co-opt the power of government for their own ends. Thus, for the period of the lawsuit, the government IS making law abridging free speech.

Be that as it may, I object to the verdict on different grounds. I disagree with the whole concept of "emotional distress". I actually look the the Declaration of Independence for my reasoning.

The Declaration, while not binding as law, does, however, summarize the fundamental ideals and goals of this country. And the phrase "inalienable rights ... PURSUIT of happiness" is where I hand my objection.

We are guaranteed the right to pursue happiness as we see it, without hindrance from the government. We are not, however, guaranteed happiness - only the right to strive for it.

A verdict of "emotional distress", to me, is a legal way of saying "boo-hoo-hoo, you made me unhappy! you have to pay me!" I'm sorry, but I don't accept that reasoning.

The bloat I see in jury awards for "emotional distress" is, I think, indicative of a cultural shift in this country to one of entitlement. "I'm entitled to what I want, so ..." is used to excuse a host of things, from serious violations of law to simple selfishness and rudeness.

In this case, I'm afraid, I do not feel the father is entitled to happy memories of his son's funeral, while those vile, disgusting, hatemongering idiots from Topeka are entitled to express their opinions.

Sigh. It's tough sometimes trying to be consistent.

BTW - I enjoy reading your blog immensely, even though I often disagree with your sentiments. You're a good writer.

PS - Please forgive any typos. They just took the stitches out today, but I'm still a hand short for typing.

'Dawg, I had planned to write my own blog about this decision, but you did a much better job than I could have done. I had written an earlier post about this case when it went to the jury for deliberation.

I think the key to the decision and the award lies in Judge Bennett's instructions to the jury. He told them that there were limits to 1st Amendment protection. That sometimes statements could be so vulgar, offensive or shocking that they were outside the limits of protection of the constitution. Remember all those pornography cases and J.P. Stewart's "Community Standards" provision? Bennett told the jury they must ask themselves "whether the defendant's actions would be highly offensive to a reasonable person, whether they were extreme and outrageous and whether those actions were so offensive and shocking as to NOT [emphasis mine] be entitled to 1st Amendment protection."

With all due respect to Tam and the others who see this as a .gov intrusion...I see it as a case where a fringe religious group is trying to VIOLATE community standards and hide behind the Constitution.

By not allowing them the protection of the 1st Amendment we are laying the groundwork to deny protection to other fringe radical religious groups, such as say... Islamofascists, Aryan Brotherhood Christians, or any other religious group that foments HATRED under the guise of religion.

I don't see that as a bad thing. And I've got my asbestos underroos handy for anyone who wants to flame me.

Civil trials are only possible if a legislature has made a law against the injury or offense. If in fact the jury made the correct decision then the conduct of the WBC was against some law. Unless the plaintiff was alleging something like trespass or assault, they can have no viable case because otherwise they are complaining about the content of the speech in question. The absolute core of the First Amendment is that the content of speech (though not necessarily other aspects) is always protected. Whether the penalty is paid to the government or to the plaintiff, it will be enforced by the government.

Thus we have government force being used to assess a penalty established by a government law against an action supposedly protected against government interference. Hence the objection on 1A grounds.

Simeron said... There was an article a bit ago that had 22 of these nutjobs at a funeral and 600 or so motorcycle riding dudes and dudettes with American Flag "shielding" the funeral procession from them.

Those "dudes and dudettes" were the Patriot Guard Riders http://www.patriotguard.org/

The following is from the website:

Our main mission is to attend the funeral services of fallen American heroes as invited guests of the family. Each mission we undertake has two basic objectives.

1. Show our sincere respect for our fallen heroes, their families, and their communities.

2. Shield the mourning family and their friends from interruptions created by any protestor or group of protestors.

We accomplish the latter through strictly legal and non-violent means.

I'm proud to be a member and encourage everyone else to take a look at it.

Holly,Not to flame but you said:"By not allowing them the protection of the 1st Amendment we are laying the groundwork to deny protection to other fringe radical religious groups, such as say... Islamofascists, Aryan Brotherhood Christians, or any other religious group that foments HATRED under the guise of religion."

Thats true this verdict sets the precedent. It also sets the precedent that a group of hippies, scared to PSH and emotionally scarred for life by the sight of a Virginia Open Carry protest or an NRA event could sue for damages. Hell, it might even apply to pro-gunners posting on the Brady Blog, because we went to them and made 'offensive statements'.

I could get you a jury in Massachusetts who would award damages for that. Hell, I doubt I have to leave my building to do so.

The problem, as Lady Tam points out, it that Phelps is an ass-hat and we want to see him smacked.

For all those who think Phelps has a right to do this to families as they bury their dead, you really need to consider the alternative. If my family lost someone and they showed up they would not pay damages but a OC grenade and sting ball grenade party would be in order.We take honor and decorum pretty seriously for somethings in my family If Phelps wished to protest he needs to camp outside the Airfield the bodies are returned to not harass the families.

Well I have to agree with Madrocketscientist on this one. There are restrictions to the first amendment just as there are second and others. I think the part that talks about right to peacably assemble was violated though. Peaceful assembly is just that and when you're being an ass or a group of asses you have to expect something to happen.

"They can NOT scream and shout and disrupt a PRIVATE funeral. This father or someone else PAID for that funeral..not the Phelp nuts."

The problem is, by most accounts the Phelpsians were 1,000 feet from the funeral and Mr. Snyder found out about their protest from a news report, not from seeing or hearing them at the funeral. They weren't disrupting the funeral. They were publicly expressing their opinions, totally nuts and offensive as those are.

If that's cause for a lawsuit, any of us could be sued and get a $12 million judgment against us that any expression of opinion that any thin-skinned "liberal" activist claims to find offensive - they've just got to find the right judge and jury. And Lawdog's "racist" stories about Big Momma, Pearl, and various other moronic criminals could cost more than the annual budget of the great State of Texas...

(Yes, I know the Dog never said what color those folks were, and except for the manner of speech, he could have been describing in-bred white rural yankee neighbors of mine. But to the so-called liberals, when you make fun of criminals and idiots, you must be talking about blacks - and yet we're the racists.)

markm said:The problem is, by most accounts the Phelpsians were 1,000 feet from the funeral and Mr. Snyder found out about their protest from a news report, not from seeing or hearing them at the funeral. They weren't disrupting the funeral. They were publicly expressing their opinions, totally nuts and offensive as those are.

If the above is true (I did not see anything like that, but it is possible I missed those little details), then the judgment is wrong, as much as I enjoy seeing WBC getting smacked. I was under the impression that the protest was held at the entrance to the funeral and was in everyone's face.

If this guy heard about it on the news and got upset, sorry, I know it is awful, but it was not in his face, it was on the news. I mean, if we get offended and suffer emotional distress at stuff we see on the news, free speech is in trouble.

"Civil trials are only possible if a legislature has made a law against the injury or offense."

Incorrect. Criminal trials are only possible if there is positive law declaring the (in)action in question to be a malum. Civil trials are possible whenever one party can plausibly claim that another party has unjustly caused damage.

markm said:The problem is, by most accounts the Phelpsians were 1,000 feet from the funeral and Mr. Snyder found out about their protest from a news report, not from seeing or hearing them at the funeral. They weren't disrupting the funeral. They were publicly expressing their opinions, totally nuts and offensive as those are.

Shane said...If the above is true (I did not see anything like that, but it is possible I missed those little details), then the judgment is wrong, as much as I enjoy seeing WBC getting smacked. I was under the impression that the protest was held at the entrance to the funeral and was in everyone's face.

I saw the father in question on Fox News (forget the program... I think it was probably O'Reilly?) and heard the above story straight from his mouth. He was more or less unaware of the protesters' presence at the funeral until he turned on the TV later.

I had reservations about the decision in the first place, but after hearing that, I knew it was the wrong call. Having to say that really burns me up, since I despites the WBC folks as much as the next person. But... we can't base justice on who we like, dislike, want to celebrate, or want to lock away.

As long as the government is involved as an arbiter, I think the law has to be involved at some level. The jury system would be perfect if jurors were emotionless robots capable of evaluating cases or suits solely on the facts of the case. As it is, I don't think a truly impartial jury exists, and certainly not for folks like the WBC.

I think it's fundamental to our justice system to do something to ensure fairness even for those we don't like... And if that means that arbitration through the government must be held to the strict standards of the constitution, so be it.

I think if you put this situation in other contexts, other hypotheticals, with more savory players, it makes it a little easier to understand. I do not believe my neighbor should be able to sue me for 11 million dollars because I've been shooting on my own 100 acres... but because said neighbor hates guns, they're upset and calling it "noise pollution." I don't think anybody here would say that's a legitimate claim, yet many parts of the country would populate a jury with people who would side with the neighbor.

This all reminds me of way-back-when, when one John Adams stepped up to defend the British soldiers involved in the Boston Massacre. They were unpopular characters - some even consider them having fired the first early shots of the Revolution. But Adams saw they deserved justice, no matter what damage it did to his own reputation, and he defended them in the interest of fairness.